9911796707
TMI Blog2003 (5) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in September, 1998. The notice in December, 1998 was issued by customs authorities for the duty along with interest, penalty and confiscation. The Tribunal by the said order partly allowed the appeal holding that no penalty and confiscation is called for. In the said order the Tribunal has further held that there was no provision for interest under the law or under the notification. 3. The application for rectification of mistake has been filed on the following grounds : 2. This Hon ble Appellate Tribunal, in paragraph 8 of its aforesaid order, was pleased to hold as follows : It is not possible for us to agree that the public notice has the effect of amending paragraph 38 of the Policy. Paragraph 38 specifically mentions four or five years for fulfilling the export obligation. These are the same periods that are specified in the Table to the Notification. Paragraph 105 of the Handbook of Procedures, which deals with the EPCG procedures, provides for a maximum extension by a year by the Committee of Secretaries of the period for fulfilling the export obligation. Under what provisions of the Policy, the public notice has been issued, extending the period for fulfilment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. G.S.R. 423 (E), dated the 20th April, 1992 (i) In the said notification, after condition (iii) the following condition shall be inserted, namely :- 20th April, 1992 (160/92-Customs, dated the 20th April, 1992). (iv) where the licensing authority grants an extension of the period for fulfilment of export obligation or regularization of shortfall in export obligation not exceeding 5% of such export obligation, in terms of, and subject to satisfaction of such conditions as may be specified in a Public Notice of the Government of India in the Ministry of Commerce in this regard, the said period of fulfilment of export obligation may be extended, but shall in no case be extended, beyond the 31st March, 2002, and the said shortfall in export obligation condoned by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs, as the case may be. 5. It is submitted that the effect of Section 115 of the Finance Act, 2001 read with 8th Schedule is that the said Notification No. 160/92, dated 20th April, 1992 had clause (iv) incorporated in it on and from 20th April, 1992. It is submitted that the effect of insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He stated that amendment act should not be given greater retrospective operation on the basis of its language and general scheme of EPCG render if necessary. He also stated that unless the party aggrieved against any order passed by any authority viz. Tribunal is agitated before the superior forum and such proceedings are kept alive, the party cannot take advantage of the completed proceedings. In other words, Mr. Sethna, the learned Sr. Counsel for the Department said that once the order becomes final it cannot be revived by means of legislative process in the form by retrospective amendment made in the Finance Act, 2001. He therefore, states that invocation of jurisdiction of the Tribunal by means of rectification of mistake does not arise. 7. In reply to the said argument learned Counsel for the applicant relies upon the last sentence of the 4th paragraph of the judgment of the Hon ble Supreme Court of India in the case of Venkatachalam, ITO v. Bombay Dyeing and Mfg. Co. Ltd. In paragraph 4, it is stated that the principle of the finality of orders or the sanctity of the existing rights cannot be effectively invoked by the department in the present case. 8. We have considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This letter does not state that such a decision has been taken by DGFT who is the superior authority to the Additional DGFT. But fact remains that the Department does not challenge the letter of Foreign Trade Officer issued on 18-2-2002. The same cannot be challenged before this Tribunal. They ought to have challenged the same before DGFT in terms of Section 16 of the Foreign Trade (Development and Regulation) Act, 1992. The said section provides that the Central Government, in the case of any decision or order, not being a decision or order-in-appeal made by Director General or the Director General in case of any decision or order made by any officer subordinate to him, may on its or his own motion or otherwise, call for and examine the records of any proceeding in which a decision or an order was made. Therefore, the contention of the learned Senior Counsel on behalf of the department cannot be accepted. 11. As far as the facts of the ROM is concerned, the said judgment of the Supreme Court in Venkatachallam .s case is concerned it has been held in the paragraph Nos. 3 and 4 as follows :- 3. In deciding this question it would be necessary to determine the true legal effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 242) (B). Lord Blanesburg who delivered the judgment of the Board referred to the Board s earlier decision in the Colonial Sugar Refining Company v. Irving, 1905 AC 369 (C), where it was in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The learned Judge then added that Their Lordships have no doubt that the provisions which, if applied retrospectively, would deprive of their existing finality order which, when the statute came into force, were final, are provisions which touch existing rights . The argument for the respondent is that the assessee has obtained a right under the order passed by the Income-tax Officer to claim credit for the specified amount under Section 18A(5) and the said right cannot be taken away by the retrospective operation of Section 13 of the Amendment Act. The same argument is put in another form by contending that the finality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment of Finance Act, 2001, the DGFT authorities issued public notice dated 31-3-2001 [Public Notice 3 (RE-01) 97-2002] in exercise of power conferred under paragraph 4.11 of the Export and Import Policy 1997-2002, which provides as follows : In cases where the Bank Guarantee already executed covers the Customs duty in proportion to the unfulfilled export obligation together with 24% simple interest thereon and the same is valid till 31-3-2003, no separate Bank Guarantee shall be insisted and the licence holder shall be required to make a request on or before 29-6-2001 along with details of the Bank Guarantee already executed. In cases where the Bank Guarantee has been executed with the Customs authority, the licence holder shall be required to furnish a certificate to this effect on or before 29-6-2001 from the concerned Assistant Commissioner of Customs and the Central Excise with whom the Bank Guarantee has been executed. In cases where the Bank Guarantee already executed in terms of Public Notice No. 5, dated 6-4-1999 and valid up to 30-3-2002, it may be extended up to 31-3-2003 covering the Customs duty and interest up to 30-9-2002 in proportion to unfulfilled E.O. and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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